The Rocky Mountain Employer

Employers may soon have more clarity regarding the scope of federal agency subpoena power.  On February 21, 2017, the United States Supreme Court heard oral arguments in McLane Co. v. EEOC, a case initially brought to determine appropriate procedural standards, but has since grown to a case that may determine the appropriate scope of Equal Employment Opportunity Commission (“EEOC”) subpoena power.  This article examines the federal agencies’ subpoena power; the increased agencies’ threats of the use of subpoenas; and an overview of McLane Co. and its potential impact on employers.

President Trump’s announcement of a new Department of Labor (“DOL”) Secretary pick, and statements from the Chairman of the Congressional Workforce Protections Subcommittee (the “WP Subcommittee”) about possible legislation, are setting the stage for changes in employment and labor policy in the Trump administration.

The 2017 Colorado proposed legislation could significantly impact Colorado employers.  On January 31, 2017, Senators Jack Tate (R-District 27) and Jim Smallwood (R – District 4) spoke at the Labor and Employment Council for the Colorado Association of Commerce & Industry (“CACI”) and provided an overview of various proposed employment laws.  Below is Campbell Litigation’s report on the meeting.

Employers throughout the country will very likely face fewer regulatory burdens in the next four years.  President Trump recently signed an executive order directing federal agencies to eliminate two current regulations for every new regulation they implement (the “Executive Order”). President Trump stated one of the goals of the Executive Order will be to help grow business by reducing regulation, and further explained that he wants to eliminate “a little more than 75 percent” of current regulations.  President Trump’s Executive Order and comment clearly signal a reversal from the previous administration’s philosophy concerning regulations, and many business groups and associations have applauded the change.  

A recent National Labor Relations Board (“NLRB” or the “Board”) decision highlights the well-established rule that an employer violates Section 8(a) of the National Labor Relations Act (“NLRA” or “Act”) by prohibiting employees from discussing unionization, when employees are not otherwise prohibited from discussing other subjects unrelated to work.

The United States Supreme Court will decide the validity of class action waivers within employment arbitration agreements.  On January 13, 2017, the Supreme Court granted certiorari to and consolidated three separate petitions requesting that the Court review this issue.  The Court has yet to set a date for oral argument, but will likely decide this issue before taking its summer recess in late June 2017.   Currently, there is a deep split in the federal appellate courts regarding whether employment arbitration agreements that contain class action waiver clauses are enforceable, as two federal appellate courts have found such agreements unenforceable, and four federal appellate courts have held such agreements are valid.

The Third Circuit Court of Appeals (“Third Circuit”) recently held that the Age Discrimination in Employment Act (“ADEA”) permits plaintiffs within a subgroup of the protected class to bring a disparate-impact claim.  The Third Circuit decision is the first to recognize such a claim, and creates a split within the federal appellate courts.  This article analyzes ADEA disparate-impact claims and the Third Circuit decision creating the circuit split, and provides practical takeaways for employers.

As of January 1, 2017, Colorado employers must begin paying its employees a minimum of $9.30 per hour, or $6.28 per hour for tipped employees, an increase of $0.99 per hour.  In November 2016, Colorado passed Amendment 70, which will gradually increase the state’s minimum wage to $12.00 per hour by January 2020, and the first—and biggest—increase took effect January 1, 2017.  While Amendment 70 did not specifically address the tipped employee minimum wage, Colorado’s Minimum Wage Order Number 33 only permits up to $3.02 per hour in tip income to offset the standard minimum wage.  Accordingly, Colorado’s tipped minimum wage will also gradually increase each year until it reaches $8.98 per hour in January 2020.  

In 2017, we will continue to focus on the areas of most importance for employers not only in the Rocky Mountain region, but across the country as well.  In 2017, we anticipate that some of the key areas impacting employers will include: The Trump Administration’s relaxing of regulations on employers; The Supreme Court ruling on whether arbitration agreements can include class action waivers; likely increases to the minimum wage; and further guidance regarding LGBT protections under Title VII of the Civil Rights Act of 1964.

Campbell Litigation often counsels its clients regarding the importance of documenting employee performance issues pursuant to company policy.  Documentation is particularly important in light of the Equal Employment Opportunity Commission’s (“EEOC”) increased efforts to enforce disability laws, including the Americans with Disabilities Act (“ADA”).  A recent Tenth Circuit Court of Appeals (“Tenth Circuit”) decision highlights the importance of documenting employee performance issues, as well as the ADA’s requirement that employers have knowledge of an employee’s disability before the employer may be liable under the Act.  This article analyzes the Tenth Circuit decision and provides practical takeaways for employers.

Before employers are ever presented with a charge of discrimination or complaint in an employment lawsuit, plaintiffs’ counsel often investigate their client’s allegations by reaching out to speak with current and/or former employees of the company. The Rules of Professional Conduct, however, limit how and whether plaintiff’s counsel can contact current and/or former employee outside the presence of management’s counsel. This article analyzes some limitations on plaintiffs’ counsel’s communications with management’s current and former employees.

President-elect Donald Trump will likely nominate CKE Restaurants chief executive Andrew Puzder to be the next Labor Secretary.  Puzder has led CKE Restaurants—the parent company of Carl’s Jr. and Hardee’s—since 2000, and has been a vocal critic of President Obama’s labor policy and government intervention in labor markets.  President-elect Trump must still formally nominate Puzder, and the Senate must confirm the nomination before Puzder will be able to take office.  If confirmed, Puzder will likely push for a return to George W. Bush-era policies of reducing regulatory hurdles to help employers create jobs, which would represent a significant change from current Labor Secretary Thomas Perez, who has pushed an employee-friendly labor policy.

Employers must begin using the newly revised Form I-9 (the “New Form I-9”) by January 22, 2017.  The United States Citizenship and Immigration Services (USCIS) recently released the New Form I-9 that replaces the current version, which was released in March 2013 and expired on March 31, 2016 (the “March 2013 Form I-9”).  Employers may use either the March 2013 Form I-9 or the New Form I-9 until January 21, 2017.  This article analyzes the changes made to the March 2013 Form I-9 and the practical impact on employers.

A federal judge in the United States District Court for the Eastern District of Texas has granted a nationwide preliminary injunction that temporarily enjoins the enforcement of the Department of Labor’s (“DOL”) Overtime Rule.  The DOL’s Overtime Rule, which would have gone into effect December 1, 2016, would have increased the minimum salary threshold for White-Collar employees to be exempt from overtime from $445 per week ($23,660 per year) to $913 per week ($47,476 per year).  For now, the preliminary injunction preserves the status quo, meaning employers must only pay White-Collar employees who satisfy the DOL’s duties test at least $445 per week ($23,660 per year) on a salary basis in order for the employee to be exempt from overtime. 

On November 16, 2016, there were two major developments in federal court regarding the Department of Labor’s (“DOL”) Persuader Rule and Overtime Rule that could have a significant impact on employers throughout the country. A federal judge in the United States District Court for the Northern District of Texas granted a permanent, nationwide injunction preventing the DOL’s implementation of the Persuader Rule because it was inconsistent with the Labor-Management Reporting and Disclosure Act (“LMRDA”).  In the United States District Court for the Eastern District of Texas, a federal judge heard arguments regarding whether to grant a preliminary injunction to prevent the implementation of the DOL’s Overtime Rule, and plans to rule by November 22, 2016.  This article analyzes both federal court rulings and their practical implications for employers.

Colorado employers will see increases to the state’s minimum wage over the next four years, but will not have to pay additional payroll tax to support a state-chartered universal insurance system.  On Tuesday, Colorado voters passed Amendment 70, which will gradually increase the state minimum wage—currently at $8.31 per hour—to $12.00 per hour by 2020 (the “Minimum Wage Amendment”), but voted down Amendment 69, which would have created ColoradoCare, a state-chartered universal insurance system that would have required employers to contribute 6.67 percent in additional payroll taxes (the “ColoradoCare Amendment”).

As employee social media usage grows both in and out of the workplace, employers may face more discrimination and harassment allegations based on employee comments and posts on social media platforms, such as Facebook, Twitter, and Instagram.  A recent federal lawsuit filed in the United States District Court for the Eastern District of Pennsylvania highlights this issue, as an American Airlines flight attendant alleged that her male colleagues sexually harassed her through various social media outlets.  This article analyzes the federal lawsuit and provides best practices for how to handle employee social media usage.

The Equal Employment Opportunity Commission (“EEOC”) recently issued its Employment Guidance on Retaliation.  While the EEOC’s Employment Guidance is a useful—albeit lengthy—resource, Campbell Litigation’s Daniel Combs has provided the following article on litigating and defending retaliation claims from a management perspective. 

Campbell Litigation hosted the General Counsel’s Insight on the Economy: A Workforce Perspective event this week at the Ralph L. Carr Judicial Center in Denver, Colorado.  The event featured general counsel from various industries addressing economic and employment trends, including the growth of a diverse workforce; sharing best practices for managing risks associated with a changing workforce; examining the role both in-house and outside counsel play in ensuring a legal team that can address the diverse workforce; and developing strategies to ensure outside legal counsel provides representation to address the changing workforce.

Over the past decade, Colorado has seen significant growth in its economy and in its general population, diversifying the state.  Colorado’s economic and population growth are anticipated to continue into 2017 and beyond, which will lead to an increasingly diverse workforce.  To stay competitive, Colorado companies must adapt and gain understanding into the variety of cultures and life experiences of its employees and management in order to provide the best product or service to its customers.  Failure to adjust corporate practices to the workforce may lead to employee dissatisfaction, high turnover, low productivity, and potential employee lawsuits against the company. 

This article analyzes the economic growth and the changing workforce of Colorado companies, explores the impact of the Equal Employment Opportunity Commission (“EEOC”) on companies as it relates to charges of employment discrimination, and discusses best practices for managing Colorado’s diverse workforce.